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Document any slippage in employee performance to insulate against later discrimination claims

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in Discrimination and Harassment,Human Resources,Leaders & Managers,Performance Reviews

To prove discrimination, employees must use either direct evidence or indirect evidence to show that their employer discriminated against them.

An example of direct evidence is a manager’s admission that the employee was disciplined or fired because of the employee’s protected characteristic—race, gender, age and so forth. In other words, the employee must produce the smoking gun. Very few discrimination cases are decided based on direct evidence because managers rarely admit to blatant bias.

To prove discrimination by indirect evidence, an employee has to show that she:

  1. Belongs to a protected class
  2. Was meeting the employer’s legitimate expectations
  3. Suffered an adverse employment action such as being disciplined or fired
  4. Experienced less favorable treatment than a similarly situated employee outside her protected class.

Most employees don’t have any trouble meeting the first requirement because everybody belongs to at least one protected class.

The second requirement, however, is more difficult—and provides one of the best opportunities for employers to counter discrimination claims. If you can show that the employee wasn’t living up to your legitimate expectations, her case will most likely be dismissed.

Legitimate expectations—or adequate performance—aren’t measured just by performance evaluations. That’s especially true if the last performance evaluation occurred months earlier and performance has since changed.

It’s possible to argue that someone who once received a good review became a substandard performer who deserved discipline or dismissal. In fact, even minor infractions such as insubordination can be enough to sink the employee’s claim that she was meeting legitimate expectations.

Recent case: Jessica Benuzzi, who is white, worked for the Chicago Board of Education as a custodian-engineer and received good performance reviews. Then a new principal—who is black—arrived at the school where Benuzzi worked. The two immediately clashed.

During one meeting called to discuss complaints from co-workers about Benuzzi’s attitude and language, Benuzzi started screaming and fled the room. She later blamed the outburst on severe stomach pain caused by a supposed disability, but got a clean bill of health following a medical examination.

Then Benuzzi hung up on a call from the principal. Eventually, she was fired for poor behavior and insubordination.

She sued, alleging that she had really been fired because of disability, sex or race. She pointed to her past performance reviews as evidence of discrimination.

The court dismissed the case, concluding that there was no direct evidence of discrimination and that Benuzzi didn’t get past step 2 of the indirect proof test—the part requiring her to show she was meeting her employer’s legitimate work expectations. The court said the past evaluations alone weren’t enough—she had to show that she was meeting expectations at the time of the adverse employment decision. Hanging up on your boss and verbally abusing co-workers don’t help your case. (Benuzzi v. Board of Education of the City of Chicago, et al., No. 09-C-3510, ND IL, 2010)

Final note: The key to winning cases like this—as it is in so many cases—is proper documentation. If an employee’s performance is deteriorating or new problems are surfacing, address them right away. Start your progressive-disciplinary process.

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